1987 PLP 1082 (SCMR)

ASLAM RIAZ HUSSAIN, J.‑‑Petitioner seeks leave to appeal against the judgment of the Lahore High Court, dated 5‑10‑1983, dismissing his appeal in a case under section 302, P.P.C. He was tried alongwith 8 others, for the murder of Shah Ali (deceased) and making murderous assault, inter alia, on Dur Muhammad (P.W.9), in an occurrence which took place at Degerwela on 10‑12‑1978 in village Itundan, Dera Ghazi Khan.

2. Motive for the occurrence was a quarrel between Hamal accused and Umar Hayat of the complainant‑party.

3. Prosecution case briefly is that 5/6 days prior to the occurrence Umar Hayat, maternal‑cousin of Nabi Bakhsh complainant, was insulted and was given thrashing by petitioners Hamal, Allah Bakhsh and Pathan. Shah Ali (deceased), a brother of Umar Hayat, Dur Muhammad, Hazur Bakhsh P.Ws. and one Dost Muhammad, who are relatives of Umar Hayat, gave beating to Hamal and insulted him to avenge the insult of Umar Hayat. The respectable from both sides attempted for a compromise and approached Hamal twice or thrice, but Hamal refused to compromise saying that he is Baluch and he will avenge his insult. It is stated that on the day of occurrence at Degerwela Shah Ali deceased, Dur Muhammad, Hazur Bakhsh and Ghulam Rasul were going to their houses after performing Jumma prayer in Qasba Tibbi Lundan. followed by Nur Muhammad and the complainant at a short distance. When Shah Ali etc. reached near Bund Muhammad Wala, accused Hamal and Ghulam Hussain, armed with guns, Pathan armed with Kulhari, Imam Bakhsh armed with a Kulhara, Allah Bakhsh armed with a sword and the remaining (acquitted co‑accused) accused including Muhammad Bakhsh (since murdered) armed with Sotas, came out of the bushes, Hamal raised a Lalkara and exhorted his companions that Shah Ali etc. should not be allowed to escape alive and they should be taught lesson, on which Allah Bakhsh petitioner gave an injury with Kulhari to Shah Ali. Pathan accused caused injuries with Kulhara to Dur Muhammad, while the remaining accused caused injuries with their respective Sotas and the butts of the guns to Shah Ali (deceased), Dur Muhammad and Hazur Bakhsh P.Ws. Ghulam Rasul, Nur Muhammad, Karim Bakhsh P.Ws. and the complainant tried to intervene by beseaching the assailants, but they were threatened by the accused saying that in case they came forward they will be murdered. The assailants after causing injuries to Shah Ali, Dur Muhammad and Hazur Bakhsh, went away to their houses alongwith their weapons. After sometime Shah Ali died on the spot. Dur Muhammad was taken to hospital at Dera Ghazi Khan by his father Karim Bakhsh, who had reached the spot after the occurrence. The trial Court acquitted Ghulam Hussain, co‑accused but convicted Hamal, Allah Bakhsh, Imam Bakhsh and Pathan, (petitioners) under section 302/149, P.P.C. for which it sentenced Hamal and Allah Bakhsh to death and Imam Bakhsh and Pathan petitioners to imprisonment for life. It also convicted, them to 5 years' R.I. each under section 307/149, P.P.C. and 3 years' R.I. each under section 148, P.P.C. The High Court dismissed their appeal and maintained their convictions, but reduced the sentences of 'Allah Bakhsh and Hamal under section 302/149, P.P.C. from death to imprisonment for life. Not being satisfied they have now filed the present petition for leave to appeal.

5. The main contention pressed by the petitioners' counsel is that Imam Bakhsh co‑accused had also sustained serious injuries during the incident which are described as follows:‑- (1) An incised wound about 5 " x 1" bone deep on right side head and face. Its upper end was at the level of upper most border of right ear and it was about 1" away from the ear in front of it. Running obliquely towards the right cheek. (2) An incised wound about 2" x " x skin deep on back of right side neck 3" away from the ear. He also relied on the defence version put forward by Imam Bakhsh which is reproduced below:‑-- "A week prior to the present occurrence an altercation took place between me and Omer Hayat P.W. During the scuffle his turbon went off and he took it as a Balochi insult. He threatened me that he would avenge his insult. On the day of occurrence I alongwith Azim Khan (complainant of the cross‑case) were going from Tibbi Lundan to our houses after Jumma prayer. As we reached Road Dinga near Band Muhammad Wala, Shah Ali deceased, Omer Hayat and Dur Muhammad P.Ws. emerged out of Jal bushes armed with hatchets. They challenged and then attacked on me. Omer Hayat and Shah Ali deceased gave one injury each to me which landed on my face and neck. The attack of Dur Muhammad was missed because of the interception of Azim Khan. In the meantime Khan Muhammad and Amir Bakhsh reached the spot. They injured Shah Ali and Dur Muhammad in order to save my life. Omer Hayat managed to run away. I was later on medically examined. The police duped us on the pretext that a case will be registered against the complainant party according to our version. But they sided the complainant party and challaned us arbitrarily. We then lodged the cross‑complaint Learned counsel submitted that the complainant party deliberately omitted to mention the injuries caused to Imam Bakhsh accused during the incident and that even at the trial the P.Ws. refrained from explaining these injuries. He submitted further that these injuries fully support the defence version given by Imam Bakhsh accused. He also submitted that a reading of the discussion of the two learned Courts below on this aspect of the case shows that the defence version was not properly appreciated by the said Courts, in the light of unexplained injuries on the person of the Imam Bakhsh accused /petitioner. On going through the relevant portions of the said judgments we feel that the contentions raised by the petitioners' counsel need further consideration. Leave is, therefore, granted to consider whether the well‑established principals of appreciation of evidence in criminal cases have been followed in this case. M.I./H‑9/S Leave granted.